Opinion
No. 7:18-CV-00138-D
08-19-2019
Cindy L. Evans, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Cindy Evans instituted this action in August 2018 to challenge the denial of her application for social security income. Evans claims that Administrative Law Judge ("ALJ") Richard LaFata erred in (1) failing to find her impairments met or equaled the criteria in the Listing of Impairments, (2) failing to evaluate properly her residual functional capacity ("RFC"), and (3) relying on the testimony of the Vocational Expert ("VE") of other work she could perform. Both Evans and Defendant Andrew Saul, Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 12, 15.
After reviewing the parties' arguments, the court has determined that ALJ LaFata reached the appropriate determination. ALJ LaFata correctly found that the evidence of Evans's headaches and narcolepsy failed to meet or equal a Listing impairment. And he did not err in giving limited weight to the opinions of Evans's treating providers when determining her RFC. Finally, although the hypothetical question to the VE stated an incorrect frequency for operating foot controls, the jobs identified by the VE still conform to the RFC determination. So ALJ LaFata could rely on the VE's testimony about other work. The undersigned magistrate judge thus recommends that the court deny Evans's motion, grant the Commissioner's motion, and affirm the Commissioner's determination.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In July 2014, Evans filed applied for supplemental security income, alleging a disability that began in September 2009. After her claim was denied at the initial level and upon reconsideration, Evans appeared before ALJ LaFata for a hearing to determine whether she was entitled to benefits. ALJ LaFata determined Evans had no right to benefits because she was not disabled. Tr. at 14-28.
ALJ LaFata found that Evans's narcolepsy, headaches, degenerative disc disease of the cervical spine, chronic pain syndrome, mood disorder, anxiety, and depression were severe impairments. Tr. at 16. ALJ LaFata also found that Evans's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 17.
ALJ LaFata then determined that Evans had the RFC to perform a reduced range of light work. Tr. at 19. Evans can occasionally operate foot controls with her lower right extremity. Id. She can frequently reach overhead to the right and left. Id. Evans can occasionally balance, stoop, kneel, crouch, and climb ramps and stairs, but she can never crawl or climb ladders, ropes, or scaffolds. Id.
Evans cannot work at unprotected heights, around moving mechanical parts, or around dangerous machinery. Id. She cannot operate a motor vehicle as an occupational requirement. Id. Evans must also avoid concentrated exposure to extreme cold and extreme heat, and she cannot work around open flames and open bodies of water. Id.
Evans is limited to simple, routine, repetitive tasks but she cannot work at production-rate pace (i.e., assembly line work). Id. She is also limited to simple, work-related decisions related to using judgment and dealing with changes in the work setting. Id. Evans can occasionally respond appropriately to supervisors and coworkers but she cannot perform any tandem or teamwork functions. Id. And she can occasionally respond appropriately to the public. Id. Finally, considering her overall medical status and impairments, Evans is likely to be off-task beyond normal breaks five percent of the workday (about another 20 minutes in an eight-hour workday on top of normally scheduled breaks). Id.
ALJ LaFata concluded that Evans could not perform her past relevant work as a child care/day care worker, delivery driver, church sexton, or file clerk. Tr. at 26. But considering her age, education, work experience, and RFC, ALJ LaFata found that jobs existed in significant numbers in the national economy that Evans could perform. Tr. at 27. These jobs include weight tester, bandoleer straightener-stamper, and clip or pin fastener. Id. Thus, ALJ LaFata found that Evans was not disabled. Tr. at 28.
After unsuccessfully seeking review by the Appeals Council, Evans commenced this action in August 2018. D.E. 1.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is conclusively presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
Evans began care with Dr. Sam Armitage and Carrie Waters, PA-C, in October 2009. Tr. at 1052. By mid-2014, Evans saw them monthly for her narcolepsy, headaches, right ankle pain, depression, and anxiety. Tr. at 684-89.
In March 2014, Evans saw Dr. Robert Rodger, an orthopedic surgeon, for neck pain that had recently worsened. Tr. at 375-76. An MRI revealed disc disease with herniations at C5-C6 and C6-C7, which impacted the cord. Tr. at 373. Dr. Rodger assessed Evans with cervical spondylosis with myelopathy. Id.
The next month, Evans saw Antionette Izzo, PA-C, who diagnosed her with narcolepsy after testing. Tr. at 471-72. Izzo prescribed medication to Evans and recommended "well-timed naps" to address her narcolepsy symptoms. Tr. at 471. But Evans reported excessive sleepiness at later visits despite these medications. Tr. at 462-70.
In May 2014, Valerie Masotti, M.S., PA-C, evaluated Evans for her chronic headaches, for which she prescribed medication. Tr. at 498-501. Four months later, Masotti administered occipital nerve blocks to address Evans's headaches. Tr. at 488-92. Masotti assessed Evans with myofascial pain syndrome and chronic pain syndrome. Tr. at 491.
Later that month, Evans visited University of North Carolina Hospital ("UNCH") for right ankle pain. Tr. 596-601. Records reflect that she had hypersensitivity to light touch and that injections had failed to alleviate her symptoms. Tr. at 598, 601. Evans's diagnosis was benign neoplasm of the long bone of the lower extremity and posterior tibial tendonitis. Tr. at 597.
In September 2014, Dr. Armitage and Waters wrote a letter addressing Evans's condition. Tr. at 825-26. They noted the multiple symptoms for which they treated Evans since 2009, including narcolepsy, headaches, right ankle pain, and depression, and the several specialists to whom they referred her. Id. Dr. Armitage and Waters opined that Evans's excessive daytime sleepiness would make it difficult for her to maintain a regular schedule. Id. And her daily headaches and depression made it difficult for her to concentrate and complete tasks. Id.
One month later, Evans visited Port Human Services for an assessment. Tr. at 663-76. Evans reported depression with multiple daily crying spells. Tr. at 663. Providers diagnosed an anxiety disorder and a depressive disorder, for which they prescribed medications to Evans. Tr. at 669-70.
Later that month, Evans saw Waters for a follow-up visit. Tr. at 679-81. She reported that a pain cream had helped her ankle pain but she continued to feel depressed. Id. Evans also stated that her narcolepsy was uncontrolled and her headaches made it difficult to concentrate. Id. Waters advised Evans to continue her medication regimen. Id.
Evans continued to report daily headaches, for which medication provided little relief. Tr. at 780. She later underwent a tibial nerve injection, but experienced little pain relief. Tr. at 841, 845-46. In November and December 2014, Evans's symptoms continued.
In January 2015, Evans saw Dr. Alfred DeMaria, a neurologist, for her complaints of daily headaches. Tr. at 1267-71. Medications provided Evans some relief, but injections had not. Id. Dr. DeMaria diagnosed probable migraines but he could not exclude a musculoskeletal component or psychophysiologic insomnia. Tr. at 1270. At a follow-up visit three month later, Evans reported about 15 headaches per month, each lasting more than four hours. Tr. at 1263-66. Dr. DeMaria prescribed Botox injections. Id.
The next month, Evans stated she experienced extreme fatigue, right ankle pain, and depressive symptoms. Tr. at 944-46. Evans also reported that her right ankle symptoms interfered with her walking and functioning. Tr. at 945. An examination found tenderness along the anterior medial distal tibia that extended along the medial hindfoot to the medial plantar arch. Id.
In June 2015, Evans received Botox injections for her headaches. Tr. at 1259-62. Two months later, Evans reported continued difficulty with sleep and fatigue, sometimes being unable to sleep and other times feeling sleepy during the day. Tr. at 988-92. Despite her medications, Evans claimed she still experienced days she could not get out of bed. Tr. at 1303-05.
Providers administered a second round of Botox injections the next month. Tr. at 1255-58. One month later, Evans again reported headaches, continued ankle pain, and falling asleep during the day. Tr. at 997.
Waters issued a second statement in October 2015 to follow-up on her earlier report. Tr. at 1051. Waters remarked that employment would be difficult for Evans because her narcolepsy, headaches, and depression presented symptoms that would be hard to accommodate. Id.
The next month, Dr. Joshua Tennant, an orthopedic surgeon, evaluated Evans's ankle. Tr. at 935-36. He recommended that Evans undergo a right ankle scope, distal tibial lesion biopsy and grafting, and posterior tibial tendonoscopy. Id. Dr. Tennant noted that Evans's pain may still persist. Id. Dr. Tennant performed the surgery the next month. Tr. at 927-35.
At a return visit to Dr. DeMaria, Evans claimed that her headaches had worsened with the Botox injections. Tr. at 1250. The next month, Evans stated that she still experienced daytime fatigue but she tolerated her stimulant medication well. Tr. at 1299.
In February 2016, Evans saw cardiologist Dr. William Smith for near syncope and shortness of breath. Tr. at 1055-60. At a return visit the next month, Evans reported chest pain, shortness of breath, and unstable heart rate and blood pressure. Tr. at 1065-67. Her cardiac workup yielded normal results. Tr. at 1066. Providers assessed possible autonomic dysfunction but noted that polypharmacy, pain, stress, and anxiety may contribute to her symptoms. Tr. at 1067.
The month after, Evans noted that her right ankle pain was intermittent and she had trouble ambulating on some days. Tr. at 1023. Her headaches had improved but she claimed continued fluctuations in blood pressure and heart rate. Id. One month later, Evans told Izzo that her symptoms had worsened and she had almost fallen asleep while driving. Tr. at 1294-96.
Treatment notes from May 2016 reflect that Evans continued to experience right ankle pain worse with weight-bearing activity. Tr. at 921-23. Dr. Tennant recommended that Evans continue her pain management treatment. Id.
Three months later, Evans began treatment with Superior Innovative Services for her depression and anxiety. Tr. at 1182-84. Providers assessed chronic post-traumatic stress disorder, generalized anxiety disorder, and major depressive disorder. Tr. at 1184. Later that month, Waters restricted Evans to driving in a ten-mile radius and only during daylight. Tr. at 967.
In September 2016, Dr. Smith observed that Evans presented atypical symptoms which he believed were not cardiac in nature. Tr. at 1071-78. Treatment notes reflect that Evans was checking her blood pressure and heart rate at least seven times a day. Id. Providers believed that her underlying anxiety was likely exacerbating Evans's symptoms. Id.
Waters issued a third statement on Evans's condition in October 2016. Tr. at 1050. Waters noted that Evans continued to fall asleep during the day, required pain medication to alleviate her headaches and ankle pain, and experienced depression with crying spells. Id. Waters again concluded that Evans could not obtain gainful employment. Id.
D. Listing of Impairments
Evans contends that ALJ LaFata erred by finding that his impairments did not meet or medically equal the requirements of Listing 1.04A. The Commissioner maintains that the evidentiary record supports the ALJ LaFata's finding. The court finds that ALJ LaFata properly analyzed Evans's impairments at step three.
1. Overview
The Listing of Impairments details impairments that are "severe enough to prevent an individual from doing any gainful activity." 20 C.F.R. § 416.925(a). If a claimant's impairments meet all the criteria of a particular listing, id. § 416.925(c)(3), or are medically equivalent to a listing, id. § 416.926, the claimant is considered disabled, id. § 416.920(d). "The Secretary explicitly has set the medical criteria defining the listed impairments at a higher level of severity than the statutory standard [for disability more generally]. The listings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just 'substantial gainful activity.'" Sullivan v. Zebley, 493 U.S. 521, 532 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 153 (1987) (stating that the listings are designed to weed out only those claimants "whose medical impairments are so severe that it is likely they would be disabled regardless of their vocational background").
The claimant has the burden of proving that his or her impairments meet or medically equal a listed impairment. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981); see also Hancock v. Astrue, 667 F.3d 470, 476 (4th Cir. 2012). As a result, a claimant must present medical findings equal in severity to all the criteria for that listing: "[a]n impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan, 493 U.S. at 530-31; see also 20 C.F.R. § 416.925(c)(3). A diagnosis of a particular condition, by itself, is insufficient to establish that a claimant satisfies a listing's criteria. 20 C.F.R. § 416.925(d); see also Mecimore v. Astrue, No. 5:10-CV-64, 2010 WL 7281096, at *5 (W.D.N.C. Dec. 10, 2010) ("Diagnosis of a particular condition or recognition of certain symptoms do not establish disability.").
An ALJ need not explicitly identify and discuss every possible listing that may apply to a particular claimant. Instead, the ALJ must provide a coherent basis for his step three determination, particularly where the "medical record includes a fair amount of evidence" that a claimant's impairment meets a disability listing. Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). When the evidence exists but is rejected without discussion, the "insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings." Id. (citing Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986)). In reviewing the ALJ's analysis, it is possible that even "[a] cursory explanation" at step three may prove "satisfactory so long as the decision as a whole demonstrates that the ALJ considered the relevant evidence of record and there is substantial evidence to support the conclusion." Meador v. Colvin, No. 7:13-CV-214, 2015 WL 1477894, at *3 (W.D. Va. Mar. 27, 2015) (citing Smith v. Astrue, 457 F. App'x 326, 328 (4th Cir. 2011)). Still, the ALJ's decision must include "a sufficient discussion of the evidence and explanation of its reasoning such that meaningful judicial review is possible." Id.
2. Headaches
Evans contends that ALJ LaFata failed to evaluate properly her headaches by comparing her symptoms to the Listings. Instead, ALJ LaFata concluded he considered this impairment under Section 11.00 but there was no evidence that her headaches caused any neurological abnormalities meeting any Listing under Section 11.00. Tr. at 17.
The 11.00 Listings addressed the following neurological disorders: epilepsy, vascular insult to the brain, benign brain tumors, Parkinsonian syndrome, cerebral palsy, spinal cord disorders, multiple sclerosis, amyotrophic lateral sclerosis (ALS), post-polio syndrome, myasthenia gravis, muscular dystrophy, peripheral neuropathy, neurodegenerative disorders of the central nervous system (such as Huntington's disease, Friedreich's ataxia, and spinocerebellar degeneration), traumatic brain injury, coma or persistent vegetative state, and motor neuron disorders other than ALS. 20 C.F.R. 404, Subpt. P, App. 1, § 11.01-11.22
Evans argues that ALJ LaFata's step three finding lacks sufficient analysis. But she fails to point to which Listing she maintains her headaches might meet or equal or identify evidence that ALJ LaFata failed to consider.
A bare assessment at step three does not provide a basis for remand where an ALJ's rationale is apparent for the decision. Id. "[A]n in-depth step three analysis is unnecessary in some instances, particularly when there is not ample evidence supporting a step three listing." Turley v. Berryhill, No. 2:17-CV-01915, 2018 WL 1314589, at *3 (S.D. W. Va. Mar. 14, 2018).
ALJ LaFata's found that Evans's headaches were a severe impairment, and his decision noted that both her testimony and the medical record reflected this impairments and its related symptoms and limitations. Tr. at 16-25. So the decision concluded that Evans's headaches were a medically-determinable impairment that presented more than a minimal limitation on her ability to perform basic work activity. But ALJ LaFata also observed that Evans's examinations failed to reveal neurological abnormalities. Tr. at 17, 21-22.
As noted above, a claimant bears the burden at step three to establish that her impairments meet or equal a Listing impairment. But Evans has not identified, nor does the record disclose, "a fair amount of evidence" that her headaches meet or equal any Listing impairment. She merely argues that ALJ LaFata's analysis lacked enough detail.
So Evans has not identified evidence she maintains supports a more-detailed analysis under a specific Listing. And ALJ LaFata's decision as a whole shows that her record lacked sufficient evidence that her headaches met or equaled a Listing impairment.
For these reasons, Evans's has failed to show that this issue supports remand. The undersigned thus recommends that the court reject her argument on this issue.
3. Narcolepsy
Evans also argues that ALJ LaFata failed to consider appropriately her narcolepsy under the Listings 11.02, related to epilepsy. The Administration's Program Operations Manual System ("POMS") notes that to determine the severity of a claimant's narcolepsy, the closest Listing is 11.02, Epilepsy, although the two are not truly comparable illnesses. See POMS DI 24580.005. Here, although ALJ LaFata considered her headaches under Section 11.00, he did not explicitly evaluate Evans's narcolepsy under these Listings.
Evans contends that the record repeatedly notes her diagnosis of narcolepsy, and ALJ LaFata's failure to examine her this condition under Listing 11.02 warrants remand. But as the Commissioner points out, ALJ LaFata noted that the record disclosed no neurological abnormalities. And there is no evidence that Evans experienced seizures or evidence of any other conditions described in Listing 11.02. Given the lack of "ample evidence" that Evans's narcolepsy met or equaled the criteria of Listing 11.02, additional analysis at step three was unnecessary.
At the time of ALJ LaFata's decision, Listing 11.02 Epilepsy required documentation of a detailed description of a typical seizure and additional characteristics set forth in the subparagraphs of the Listing. 20 C.F.R. 404, Subpt. P, App. 1, § 11.02 (2017).
So Evans has failed to show that ALJ LaFata's step three finding justifies remand. The undersigned thus recommends that the court deny her motion n this issue.
E. Residual Functional Capacity
Evans contends that ALJ LaFata erred in determining her RFC by failing to accord sufficient weight to her treating medical providers. The Commissioner asserts that ALJ LaFata's properly explained his reasons for according less weight to Evans's treating providers' opinions. The undersigned finds that substantial evidence supports ALJ LaFata's RFC determination.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not "severe," when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) ("[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.").
The ALJ must provide "findings and determinations sufficiently articulated to permit meaningful judicial review." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination "must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g. laboratory findings) and nonmedical evidence (e.g. daily activities, observations)." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). Furthermore, "[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence." Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Fourth Circuit precedent "makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 F. App'x 750, 755 (4th Cir. 2015).
Social Security Ruling 96-8p explains how adjudicators should assess residual functional capacity. The Ruling instructs that the residual functional capacity "assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions" listed in the regulations. "Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy." SSR 96-8p. The Ruling further explains that the residual functional capacity "assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Id.
There is no "per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[.]" Mascio, 780 F.3d at 636. But "[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D.N.C. July 17, 2015) ("Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [Soc. Sec. Ruling] 96-8p." (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D.N.C. July 26, 2010))).
As discussed above, Dr. Armitage and Waters issued a statement on Evans's condition in September 2014. Waters issued later statements in October 2015 and October 2016, largely restating her earlier assessments of Evans's impairments and functional abilities. These providers concluded that Evans could not maintain a regular schedule and had trouble with concentration. Dr. Armitage and Waters determined that Evans would be unable to find a job that would accommodate the symptoms resulting from her narcolepsy, ankle pain, headaches, and depression.
ALJ LaFata gave these opinions limited or little weight. Tr. at 25. ALJ LaFata found these opinions inconsistent with the record as a whole and, at times, inconsistent with the reported medical findings. Tr. at 25.
Despite Evans's arguments to the contrary, substantial evidence supports ALJ LaFata's conclusion. ALJ LaFata observed that mental status examinations generally reflected that Evans was alert and oriented, exhibiting normal attention and concentration. Tr. at 24. The record did not disclose any abnormalities of Evans's ankle following her surgery and examinations noted full strength and a normal gait. Tr. at 25.
And ALJ LaFata pointed out that parts of Waters's assessments appeared to be based on Evans's subjective statements that she experienced some cardiac symptoms. Tr. at 25. But ALJ LaFata found that Evans's hypertension was generally well-controlled, with no persistent abnormal readings. Tr. at 16. It was therefore not a severe impairment. Id. As to her other cardiac symptoms, treatment notes generally showed that Evans's blood pressure was within normal range, and cardiac workups found no significant abnormalities. Id. Dr. Smith believed that Evans's symptoms were not cardiac in nature and that her underlying anxiety exacerbated her symptoms, which Evans checked at least seven times a day. Tr. at 1071-78.
Dr. Armitage and Waters were treating providers who provided care to Evans over the course of several years. But as a certified physician assistant, Waters did not qualify as an acceptable medical source. Tr. at 24. And even if Dr. Armitage and Waters determined that Evans could not obtain employment, ALJ LaFata observed that the issue of employability is one reserved to the Commissioner. Id.
Because there is no error in ALJ LaFata's consideration of the medical opinions and substantial evidence support his RFC determination, the undersigned recommends that the court deny Evans's motion of this issue.
F. Step Five
Finally, Evans contends that ALJ LaFata erred at step five by relying on testimony from the VE. She asserts that ALJ LaFata misstated the time which she can operate foot controls when presenting the hypothetical questions to the VE. Evans also argues the VE identification of other work she could perform failed to address all of her limitations.
The Commissioner maintains that although ALJ LaFata erred in relating to the VE the frequency that Evans could operate foot controls, this mistake was harmless because the jobs identified conform to Evans's RFC. And the Commissioner posits that added limitations lacked the support of substantial evidence and thus were properly excluded from the hypothetical questions to the VE. The undersigned finds no error with ALJ LaFata's step five determination.
As noted above, while a claimant has the burden at steps one through four, it is the Commissioner's burden at step five to show that work the claimant is capable of performing is available. Pass, 65 F.3d at 1203 (citing Hunter v. Sullivan, 993 F.2d 21, 35 (4th Cir. 1992)). "The Commissioner may meet this burden by relying on the Medical-Vocational Guidelines (Grids) or by calling a vocational expert [("VE")] to testify." Aistrop v. Barnhart, 36 F. App'x 145, 146 (4th Cir. 2002) (citing 20 C.F.R. § 404.1566)). The Grids are published tables that take administrative notice of the number of unskilled jobs at each exertional level in the national economy. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(a).
When a claimant suffers solely from exertional impairments, the Grids may satisfy the Commissioner's burden of coming forward with evidence as to the availability of jobs the claimant can perform. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). When a claimant (1) suffers from a non-exertional impairment that restricts his ability to perform work of which he is exertionally capable, or (2) suffers an exertional impairment which restricts him from performing the full range of activity covered by a work category, the ALJ may not rely on the Grids and must produce specific vocational evidence showing that the national economy offers employment opportunities to the claimant. See Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989); Hammond v. Heckler, 765 F.2d 424, 425-26 (4th Cir. 1985); Cook v. Chater, 901 F. Supp. 971 (D. Md. 1995); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h).
The Regulations permit testimony from a VE to determine "whether [a claimant's] work skills can be used in other work and the specific occupations in which they can be used[.]" 20 C.F.R. §§ 404.1566(e), 416.966(e). For a VE's testimony to be relevant, an ALJ's hypothetical question must represent all of a claimant's substantial impairments. Walker, 889 F.2d at 50; Burnette v. Astrue, No. 2:08-CV-0009-FL, 2009 WL 863372, at *4 (E.D.N.C. Mar. 24, 2009) (relevant hypothetical question should adequately reflect claimant's RFC and fairly set out a claimant's limitations). If limitations are omitted, the VE's testimony is of limited value, and may not constitute substantial evidence. See Johnson, 434 F.3d at 659 (citing Walker, 889 F.2d at 50).
1. Foot Controls
Evans's RFC allows for occasional operation of foot controls with her lower right extremity. Tr. at 19. But is questioning the VE, ALJ LaFata posed a hypothetical question that included a limitation to frequent, not occasional, foot control operation. Tr. at 84-85. Evans contends this error undermines the VE's testimony about other work available because there was no evidence from the VE that the positions allowed for occasional operation of foot controls.
In response, the Commissioner acknowledges ALJ LaFata's mistake. But she contends that the error is harmless because the jobs identified at step five are not incompatible with only occasional operation of foot controls.
The Dictionary of Occupational Titles ("DOT") does not list the incidence of leg/foot controls associated with every occupation. And two of the three positions identified by the VE at step five—weight tester and bandoleer straightener-stamper—are silent about whether they require operation of foot controls. The third position, pin or clip fastener, may involve depressing a pedal, but it does not identify the frequency of that operation.
But the DOT defines the physical demands associates with a job's strength rating, including operating controls. See DOT App. C, Part IV. 1991 WL 688702. A job that would be categorized as sedentary based on the weight-lifting requirements should be classified as light if it requires "sitting most of the time but entails pushing and/or pulling of arm or leg controls" or lifting a "negligible amount" of weight. Id.
In responding to ALJ LaFata's hypothetical question, the VE identified three jobs at the sedentary exertional level that accommodated Evans's other limitations. Tr. at 86-87. Because the DOT contemplates that sedentary jobs will be reclassified as light work if they involve hand or foot controls but otherwise "sitting most of the time" and lifting a "negligible amount" of weight, it is reasonable to conclude that the the weight tester and bandoleer straightener-stamper positions identified by the VE do not involve foot control operation because the DOT's description does not mention leg or foot controls. So these jobs satisfy the Commissioner's burden at step five of providing evidence of other work Evans can perform.
But the undersigned cannot conclude that the clip or pin fastener position reflects the limitations in Evans's RFC. The DOT states that the clip or pin fastener position may involve foot control actions by depressing a pedal, but it does not address the frequency of such maneuvers. The VE's testimony addressed a hypothetical question that allowed frequent operation of foot controls. Because it contemplates foot controls, this could be a position that should be recategorized as light. See DOT App. C, Part IV. 1991 WL 688702.
Perhaps the VE could testify, based on his experience, that the clip and pin fastener positions do not involve depressing a pedal or other foot control as this job is performed, but that would present a conflict between the DOT and VE's testimony that was not resolved or explained.
In sum, the undersigned cannot conclude that substantial evidence supports the identification of the clip and pin fastener position as compatible with Evans's RFC. But the other jobs identified at step five, weight tester and bandoleer straightener-stamper, satisfy the Commissioner's burden to come forward with evidence of work which Evans can perform. As the step five finding is sound, the undersigned recommends that the court reject Evans's motion on this claim.
2. Additional Limitations
ALJ LaFata found that Evans had additional limitations that precluded her from performing a full range of light work. The RFC reflects the limitations that are well-supported by the evidence. As with Evans's argument about the RFC determination, she premises her present claim on restrictions which ALJ LaFata declined to endorse. He supported this determination by citing evidence showing that Evans was capable of greater functioning than reflected in her testimony or in some limitations offered by providers.
In sum, the hypothetical to the VE represented all of Evans's well-established limitations. Because additional limitations fell outside ALJ LaFata's RFC determination, he did not have to incorporate them into the questions posed to the VE.
As the VE's testimony addressed the availability of jobs available for an individual with Evans's impairments and limitations, the court cannot find that it lacks relevance or reliability. So her argument on this issue is subject to dismissal.
III. Conclusion
For the forgoing reasons, the undersigned recommends that the court deny Evans's Motion for Judgment on the Pleadings (D.E. 12), grant Saul's Motion for Judgment on the Pleadings (D.E. 15), and affirm the Commissioner's determination.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: August 19, 2019.
/s/_________
ROBERT T. NUMBERS, II
UNITED STATES MAGISTRATE JUDGE